Andruszkiewicz v. Doherty

Appellate Division of the Supreme Court of New York

Andruszkiewicz v. Doherty

84 A.D.3d 595, 923 N.Y.S.2d 466

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 17, 2011

StatusPublished

This text of 84 A.D.3d 595 (Andruszkiewicz v. Doherty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andruszkiewicz v. Doherty, 84 A.D.3d 595, 923 N.Y.S.2d 466 (N.Y. Ct. App. 2011).

Pincite

Opinion

Determination of respondent, dated October 9, 2009, which terminated petitioner’s employment as a sanitation worker, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [O. Peter Sherwood, J], entered on or about May 3, 2010), dismissed, without costs.

The finding that petitioner accepted a gratuity in exchange for collecting trade waste is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Such evidence includes a videotape made by a citizen showing petitioner and his partner loading a vast amount of debris into the sanitation truck (see Matter of Cuthbert v Farrell, 305 AD2d 180 [2003]). Furthermore, the hearsay testimony of respondent’s investigator, who interviewed and obtained the statement made by the woman who provided the gratuity, was “sufficiently relevant and probative” to constitute substantial evidence that petitioner accepted a gratuity (Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990] [internal quotation marks and citations omitted]). There exists no basis to disturb the credibility determinations of the administrative law judge (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

The penalty of termination does not shock our sense of fairness (see Matter of Cuthbert, 305 AD2d at 180).

We have considered petitioner’s remaining arguments and find them unavailing. Concur — Tom, J.P, Saxe, Catterson, Moskowitz and Manzanet-Daniels, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Determination of respondent, dated October 9, 2009, which terminated petitioner’s employment as a sanitation worker, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [O. Peter Sherwood, J], entered on or about May 3, 2010), dismissed, without costs.

The finding that petitioner accepted a gratuity in exchange for collecting trade waste is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Such evidence includes a videotape made by a citizen showing petitioner and his partner loading a vast amount of debris into the sanitation truck (see Matter of Cuthbert v Farrell, 305 AD2d 180 [2003]). Furthermore, the hearsay testimony of respondent’s investigator, who interviewed and obtained the statement made by the woman who provided the gratuity, was “sufficiently relevant and probative” to constitute substantial evidence that petitioner accepted a gratuity (Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990] [internal quotation marks and citations omitted]). There exists no basis to disturb the credibility determinations of the administrative law judge (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

The penalty of termination does not shock our sense of fairness (see Matter of Cuthbert, 305 AD2d at 180).

We have considered petitioner’s remaining arguments and find them unavailing. Concur — Tom, J.P, Saxe, Catterson, Moskowitz and Manzanet-Daniels, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

84 A.D.3d 595, 923 N.Y.S.2d 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andruszkiewicz-v-doherty-nyappdiv-2011.

Opinion

Related

Cite This Page — Counsel Stack